Monica Goodling, the senior counsel to Attorney General Gonzales who has refused to testify about the U.S. Attorney firings by asserting the Fifth Amendment, has rejected a demand from the House Judiciary Committee that she explain why she is asserting the self-incrimination privilege. A letter from her lawyer, Akin Gump's John Dowd (available below), states that, while Goodling is innocent of any wrongdoing, a statement by Deputy Attorney General Paul McNulty that he did not receive complete information that led to him making misstatements to Congress has created a sufficient basis for Goodling to assert the Fifth Amendment, precluding any discussion of the exact basis for her position. Dowd's letter ratchets things up a notch by citing to D.C. Legal Ethics Opinion No. 31 (1977) that states it would violate the spirit of the profession's rules to require a witness to appear before a Congressional committee just to assert the Fifth Amendment when counsel notifies the committee in advance of the witness' decision to refuse to testify.

The House Judiciary Committee's offer to have Goodling meet for a private interview provides her with no protection because the Fifth Amendment is a "use it or lose it" right, meaning that if she were to disclose information to a government official then she could not assert the privilege down the road. Absent a grant of immunity, which is unlikely, Goodling has two options: speak or assert the Fifth Amendment. While Congress may not like the result, that's how the protection works. Dowd's letter may not prevent the Committee from pursuing the unseemly spectacle of demanding Goodling appear to assert the Fifth Amendment in person, as has been done in other situations (e.g. the Hewlett-Packard pretexting hearing in September 2006), to provide the photo opportunity and a forum for Representatives to bemoan the person's assertion of a constitutional right. (ph)